Evidence's #MeToo Moment

Abstract

The #MeToo movement has drawn attention to the prevalence of sexual and gender-based violence. But more importantly, it has exposed how society discounts the testimony of women. This Article unfolds how this credibility discounting is reinforced in our evidentiary system through the use of character for untruthfulness evidence to impeach victims. Specifically, through defense attorneys’ practice of impeaching sexual and gender-based violence victims’ character for truthfulness as a way to introduce functional evidence of credibility biases regarding the trustworthiness of sexual and gender-based violence victims and the plausibility of their testimonies. The Article further shows a correlation between the poor performance of our legal system in redressing the harms associated with sexual and gender-based violence and our evidentiary rules. Accordingly, the Article advocates reforming the use of character for untruthfulness evidence and proposes a rule that attempts to temper the prejudicial effects caused by long-held credibility biases against sexual and gender-based violence victims with a well-established impeachment tradition, constitutional protections, and judicial efficiency. It does so in hopes that the #MeToo movement becomes a catalyst in the judicial response against sexual and gender-based violence.

Keywords: Character Evidence, Credibility, Sexual and Gender Violence, #MeToo, Witinesses, Impeachment, Character for Unthruthfulness